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Shaw v. Cherokee Meadows, LP

United States District Court, N.D. Oklahoma

December 30, 2019

DELLA SHAW, SHERLYNE TURNER, BERTHA JOHNSON, and MARY RAND, Plaintiffs,
v.
CHEROKEE MEADOWS, LP; CARLAND GROUP, LLC; REDBUD CONTRACTORS, LLC; CARLAND PROPERTIES, LLC; and BLACKLEDGE & ASSOCIATES, Defendants. CHEROKEE MEADOWS, LP and CARLAND GROUP, LLC, Third-Party Plaintiffs,
v.
CRAFTON TULL & ASSOCIATES, INC., Third-Party Defendant.

          OPINION AND ORDER

          GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE

         This matter comes before the court on the Motion for Partial Summary Judgment Against Plaintiff Della Shaw [Doc. 92]; Motion for Partial Summary Judgment Against Plaintiff Mary Rand [Doc. 97]; Motion for Partial Summary Judgment Against Plaintiff Sherlyne Turner [Doc. 103]; and Motion for Partial Summary Judgment Against Plaintiff Bertha Johnson [Doc. 104] of defendants Cherokee Meadows, LP; Carland Group, LLC; and Carland Properties, LLC (collectively, “Carland Defendants”). Additionally, the court considers the Motion for Partial Summary Judgment Against Plaintiff Della Shaw [Doc. 105]; Motion for Partial Summary Judgment Against Plaintiff Mary Rand [Doc. 106]; Motion for Partial Summary Judgment Against Plaintiff Sherlyne Turner [Doc. 107]; and Motion for Partial Summary Judgment Against Plaintiff Bertha Johnson [Doc. 108] of defendant Redbud Contractors, LLC.

         I. Background and Procedural History

         This case arises from alleged violations of the Fair Housing Act (“FHA”), Americans with Disabilities Act (“ADA”), Rehabilitation Act, and Uniform Federal Accessibility Standards (“UFAS”) at the Cherokee Meadows Apartments. Cherokee Meadows Apartments is a forty-eight (48) unit multi-family, affordable housing community (the “Community”) for persons aged sixty-two or older developed in 2016 by Carland Group, LLC and owned by Cherokee Meadows, LP. Plaintiffs allege Carland Properties, LLC is the management company responsible for operations at the Community. Plaintiffs are tenants of Cherokee Meadows Apartments who allege that the Community includes artificial barriers that exclude persons with disabilities and do not comply with federal statutes. They further allege that defendants refused to grant reasonable accommodation requests.

         Based on these general allegations, the Complaint asserts the following claims against defendants: (1) failure to design and construct the public use and common use portions of the Community in a readily accessible and usable manner to handicapped persons in violation of the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(C); (2) discrimination based on handicap in violation of the Fair Housing Act, 42 U.S.C. § 3604(f); (3) violation of section 504 of the Rehabilitation Act, 29 U.S.C. § 794; (4) discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 1213');">132[1" name="FN1" id= "FN1">1] by designing, constructing, and maintaining housing that is not accessible to persons with disabilities; and (5) breach of contract.[2]

         The Carland Defendants filed four separate motions, seeking partial summary judgment against each plaintiff as to Count 1, violation of § 3604(f)(3)(C) of the Fair Housing Act; Count 2, discrimination under the Fair Housing Act in violation of § 3604(f); and Count 3, violation of § 504 of the Rehabilitation Act. Redbud also filed a motion for partial summary judgment against each of the four plaintiffs. Each of Redbud9;s four motions “adopt[] and incorporate[] by reference” the motions for partial summary judgment filed by the Carland Defendants as to plaintiffs9; Count 2, discrimination under the Fair Housing Act in violation of § 3604(f), and Count 3, violation of § 504 of the Rehabilitation Act. Unlike the Carland Defendants, Redbud does not seek summary judgment as to Count 1, violation of § 3604(f)(3)(C). In addition to the issues raised by the Carland Defendants, however, Redbud also seeks summary judgment as to Count 5, breach of contract. Plaintiff Della Shaw responded to the Carland Defendants9; motion and, based upon plaintiffs9; request and pursuant to order of this court, Shaw9;s response is deemed responsive to the motions for partial summary judgment by the Carland Defendants against plaintiffs Rand, Turner, and Johnson, as well as Redbud9;s motions. [Doc. 144');">144, p. 4');">p. 4]. The motions are therefore ripe for the court9;s review.

         II. Evidentiary Issues

         Before considering plaintiffs9; claims, the court must address certain evidentiary issues raised by the parties.

         A. Plaintiffs9; Objections to the Carland Defendants9; Evidence

         In the response, plaintiffs object to the Carland Defendants9; reliance on the following exhibits: Exhibit 3, Tulsa Development Authority (“TDA”) Board of Commissioners Meeting Executive Director9;s Report, dated May 2017; Exhibit 4, Affidavit of Terry D. Carty; Exhibit 5, Letter from Chuck Mitchell, P.E. of Third-Party Defendant Crafton Tull to Terry Carty, dated March 28, 2017; Exhibit 6, Letter from Larry K. Blackledge of defendant Blackledge & Associates to Terry Carty, dated April 28, 2017; and Exhibit 13');">13, statements by plaintiff Shaw in a Tulsa World news article, dated May 30, 2017. Plaintiffs contend that the cited portions of the exhibits constitute hearsay for which no exception exists and therefore the cited portions are inadmissible. Fed.R.Evid. 801.

         First, the May 2017 TDA Executive Director9;s Report, the March 28 Crafton Tull letter, and the April 28 Blackledge letter are inadmissible to prove the truth of the matters asserted. The Carland Defendants point to no applicable hearsay exceptions for the documents.[3] Further, even if the documents were admissible pursuant to a hearsay exception, the Carland Defendants fail to properly authenticate the documents. See Fed. R. Evid. 803(6) (requiring a certification by the testimony of a custodian or qualified witness, a certification that complies with Fed.R.Evid. 902(11) or (12), or statute permitting certification); Palmer v. Shawnee Mission Med. Ctr., Inc., 1003');">355 F.Supp.3d 1003, 1009 (D. Kan. 2018) (requiring authentication of public records subject to Fed.R.Evid. 803(8) hearsay exception).[4]

         Second, with respect to the Carty Affidavit, plaintiffs fail to identify any specific paragraph or averment which they contend is hearsay. To the extent that plaintiffs object to the entirety of the affidavit as hearsay, it is well-established that

[a]t the summary judgment stage, evidence need not be submitted “in a form that would be admissible at trial.” Parties may, for example, submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form.

Argo v. Blue Cross & Blue Shield of Kan., Inc., 1193');">452 F.3d 1193, 1199 (10th Cir. 2006) (internal citation omitted). For example, Carty, as Manager of the Carland Group, LLC, can properly testify from personal knowledge that Carland Group entered into a Voluntary Compliance Agreement with HUD to remediate the mountable curbs, and that the mountable curbs across driveways were removed and replaced in December 2018 with traditional sloped driveways. [Doc. 92-4, ¶¶ 19-20]. Thus, the court declines to strike the Carty Affidavit in its entirety.

         Third and finally, Shaw9;s statements in the Tulsa World article are admissible as admissions of a party opponent pursuant to Fed.R.Evid. 801(d)(2), as well as a statement of Shaw9;s then-existing mental, emotional, or physical condition. See Boyd v. City of Oakland, 458 F.Supp.2d 1015, 1050 (N.D. Cal. 2006); Tracinda Corp. v. DaimlerChrysler AG, 87');">362 F.Supp.2d 487, 495-96 (D. Del. 2005). In the article, Shaw is directly quoted as stating: “I don9;t mind living here. It9;s a nice apartment, and it9;s easy for my family to get to, easy for the church bus to pick me up. It9;s nice.” [Doc. 92-13');">13, p. 3]. During her deposition, Shaw testified generally that the article reflected her responses to the interviewer9;s questions. [Doc. 92-2, p1');">p. 102:9 to 107:4]. Thus, Shaw9;s statement, as directly quoted in the Tulsa World article, is admissible. However, the remainder of the article is hearsay. Welch v. City of Albuquerque, No. CIV-11-00700-KG-SCY, 2016 WL 8809479, at *3 (D.N.M. May 13');">13, 2016) (“Newspaper and magazine articles and reports or other media are, generally, inadmissible hearsay.”).

         B. Carland Defendants9; Objections to Plaintiffs9; Evidence

         In their reply, the Carland Defendants object to plaintiffs9; reliance on two items of evidence: (1) Letter of Findings of Noncompliance, dated February 27, 2018 [Doc. 140');">140-1], and (2) Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (“Joint Statement”) [Doc. 140');">140-7]. The Carland Defendants contend the documents constitute hearsay.

         First, the Letter of Findings of Noncompliance, dated February 27, 2018, is inadmissible hearsay. Plaintiffs fail to provide any foundational facts to demonstrate that the report falls within any hearsay exception, including Fed.R.Evid. 803(6) or Fed.R.Evid. 803(8). Further, plaintiffs fail to authenticate the document. The documents are not self-authenticating because they contain neither a seal nor a certification. See Fed. R. Evid. 902(1), (2), (4). Further, plaintiffs produce no evidence directed to any of the methods of authentication included in Fed.R.Evid. 901. Thus, the court does not consider the Letter of Findings of Noncompliance for the truth of the matters asserted.

         Second, the Carland Defendants9; hearsay objection to the Joint Statement is misplaced. The Joint Statement constitutes a statement of official government policy, rather than a declarant9;s written statement. See Austin v. Town of Farmington, 826 F.3d 622');">826 F.3d 622, 628 n.7 (2d Cir. 2016). Accordingly, the appropriate question is not admissibility, but the persuasive weight to be afforded the statement. Id.; see also Kuhn ex rel. Kuhn v. McNary Estates Homeowners Ass9;n, Inc., 8 F.Supp.3d 1142');">228 F.Supp.3d 1142, 1149 (D. Or. 2017).

         C. Issues with Respect to Plaintiffs Turner, Johnson, and Rand

         In their reply, the Carland Defendants note that Shaw9;s response brief offers no substantive response on behalf of plaintiffs Turner, Rand, or Johnson and request the court consider the facts contained in the motions against those plaintiffs to be undisputed and grant those motions.

         It is well-established in the Tenth Circuit that “a party9;s failure to file a response to a summary judgment motion is not, by itself, a sufficient basis on which to enter judgment against the party.” Reed v. Bennett, 12 F.3d 1190');">312 F.3d 1190, 1195 (10th Cir. 2002). Rather, “[t]he district court must make the additional determination that judgment for the moving party is ‘appropriate9; under Rule 56.” Id. “Summary judgment is appropriate only if the moving party demonstrates that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Id. And, as previously noted, the court approved the plaintiffs9; request to consider plaintiff Shaw9;s response to be responsive to the motions against plaintiffs Rand, Turner, and Johnson. See [Doc. 144');">144].

         Thus, the court reviews the Carland Defendants9; submissions with respect to plaintiffs Turner, Johnson, and Rand to determine if, taking as true all material facts asserted and properly supported in the motion for summary judgment, the Carland Defendants are entitled to judgment as a matter of law. Reed, 312 F.3d at 1195.

         III. Summary Judgment Standard

         Pursuant to Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         In considering a motion for summary judgment, “[t]he evidence and reasonable inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party.” Stover v. Martinez, 82 F.3d 1064');">382 F.3d 1064, 1070 (10th Cir. 2004). “A ‘judge9;s function9; at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.9;” Tolan v. Cotton, 13');">134 S.Ct. 1861');">13');">134 S.Ct. 1861, 1866 (2014) (quoting Anderson, 477 U.S. at 249). Summary judgment is appropriate only “where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.9;” Stover, 382 F.3d at 1070 (quoting Fed.R.Civ.p. 5');">p. 56(c)).

         IV. Undisputed Material Facts

         The following material facts are undisputed for purposes of the Carland Defendants9; motions for summary judgment:[5]

         Plaintiff Della Shaw is an eighty-five-year-old woman with disabilities that require her to rely on a cane to ambulate and for balance. [Doc. 92, p. 9, ¶ 1; Doc. 140');">140, pp. 7-14]. Plaintiff Bertha Johnson is a sixty-eight-year-old woman with disabilities. [Doc. 104, 1');">p. 10, ¶ 1; Doc. 140');">140, pp. 7-14]. Plaintiff Sherlyne Turner is a seventy-year-old woman with disabilities that require her to rely on a walker to ambulate and for balance. [Doc. 103, 1');">p. 10, ¶ 1; Doc. 140');">140, pp. 7-14]. Plaintiff Mary Rand is a sixty-eight-year-old woman with disabilities that require her to rely on a cane to ambulate and for balance. [Doc. 97, p. 9, ¶ 1; Doc. 140');">140, pp. 7-14].

         Each of the four plaintiffs executed lease agreements with Cherokee Meadows Apartments for units at the Community: Shaw for Unit B1 on December 16, 2016 [Doc. 92, p. 9, ¶ 2; Doc. 140');">140, p. 7, ¶ 1; Doc. 92-1]; Johnson for Unit B4 on January 5, 2017 [Doc. 104, 1');">p. 10, ¶ 2; Doc. 140');">140, pp. 7-14; Doc. 104-1]; Turner for Unit J4 on January 20, 2017 [Doc. 103, p. 10, ¶ 2; Doc. 140');">140, pp. 7-14; Doc. 103-1]; and Rand for Unit M1 on January 20, 2017 [Doc. 97, p. 9, ¶ 2; Doc. 140');">140, pp. 7-14; Doc. 97-1]. Plaintiffs moved into their respective units in Cherokee Meadows before construction was complete. [Doc. 92, p. 9, ¶ 2; Doc. 104, 1');">p. 10, ¶ 2; Doc. 103, 1');">p. 10, ¶ 2; Doc. 97, p. 9, ¶ 2; Doc. 140');">140, pp. 7-14]. Neither Shaw nor Rand requested to see another unit before either signed her respective residential lease. [Doc. 92, 1');">p. 12, ¶ 24; Doc. 97, p. 13');">13, ¶ 27; Doc. 140');">140, pp. 7-14].

         Effective January 1, 2017, Cherokee Meadows, LP “and its successors and Transferees” and the Oklahoma Housing Finance Agency executed the Regulatory Agreement for Low-Income Housing Tax Credits Creating Restrictive Covenants. [Doc. 105-1]. Turner was initially denied a unit in the Community because she would not provide the property manager necessary paperwork related to her housing voucher, but, since then, no one at Carland Properties or Cherokee Meadows has refused to accept her housing voucher as part of her rent. [Doc. 103-2, p1');">p. 110:11 to 112:1, 113');">13:9-14]. Plaintiffs have renewed their respective leases and remain residents of the Community. [Doc. 92, p. 9, ¶ 3; Doc. 104, 1');">p. 10, ¶ 3; Doc. 103, 1');">p. 10, ¶ 3; Doc. 97, p. 9, ¶ 3; Doc. 140');">140, pp. 7-14].

         Shaw completed a Move In Inspection Report, which stated “[t]he premises are being delivered in clean, sanitary, and good operating condition, with no spots, stains, marks or damages, unless otherwise noted below in the “Move-In Exceptions9; box.” [Doc. 140');">140-9]. The Inspection Report did not note any issues regarding cabinet heights, toilet clearances, light switch heights, or threshold heights. [Doc. 92, p. 13');">13, ¶ 28; Doc. 140');">140, 1');">p. 11, ¶ 17; Doc. 140');">140-9].

         On January 20, 2017, Shaw and Rand issued a handwritten letter to “Terry D. Carty, owner and or the current project manager for Cherokee Meadows” “requesting reasonable accommodations, ” including that “all driveways have proper inlets and ADA safety.” [Doc. 92, 1');">p. 11, ¶ 15; Doc. 140');">140, pp. 7-14; Doc. 92-8]. The letter stated:

The Cherokee Meadows9; driveways, with mountable steep curbs, while we are told passed inspection, are a safety issue. We are endangered as there are no inlets and access is difficult or impossible. We are afraid of falling on the driveway curbs. None of the residents have safe access for us to simply cross the street and visit neighbors.

[Doc. 92-8; Doc. 140');">140-2]. The letter also noted that the Community did not have mail delivery or landlines. [Id.]. Carty responded in a letter dated January 25, 2017. [Doc. 92, 1');">p. 11, ¶ 16; Doc. 140');">140, pp. 7-14; Doc. 92-9]. Carty suggested that tenants in need of a landline for a heart monitor contact AT&T9;s local office for a temporary accommodation until permanent lines were installed, and suggested possible solutions with respect to getting mail from the curb-situated mailboxes. Specifically, Carty suggested that “if any tenant thinks the curbs might be an issue we will replace their mailbox with one that opens from both sides, ” and also that postal customers may request special accommodations from the United States Postal Service and have their mail delivered to their door with a letter from their doctor. The letter states that Cherokee Meadows “would gladly provide a mail box at the door.” [92-9, 1');">p. 1]. AT&T installed a temporary phone line within two weeks of Rand moving into her unit, and Rand had no problems with the line once installed. [Doc. 97, 1');">p. 12, ¶ 21; Doc. 140');">140, pp. 7-14; Doc. 97-2, p. 34:13');">13 to 35:1].

         In early March 2017, Johnson claims that she fell off of a curb at Cherokee Meadows. [Doc. 104, p1');">p. 10, ¶ 4; Doc. 104-2, pp. 9:25 to 11:17; 22:3-12]. Johnson stated that it was “pitch black dark” at the time of her fall because there were no lights on the property. [Doc. 104, p. 11, ¶ 5; Doc. 104-2, p. 8:18-25]. Turner also claims that she fell at night when she was stepping down from a curb onto the street with her walker. [Doc. 103, 1');">p. 11, ¶ 4; Doc. 103-2, 1');">p. 14:18 to 16:16]. Neither Shaw nor Rand have fallen because of the curbs. [Doc. 92, p. 9, ¶ 4; Doc. 97, p. 9, ¶ 4; Doc. 140');">140, pp. 7-14]. In early 2017, Cherokee Meadows estimated the costs to change the mountable curbs would exceed $100, 000.00. [Doc. 92, 1');">p. 10, ¶ 8; Doc. 140');">140, pp. 7-14; Doc. 92-4, p. 4');">p. 4, ¶ 17].

         In the spring of 2018, Carland Properties was advised by Tax Credit Assurance that allowing tenants to pay rent late, without imposing late fees, was having a negative financial impact upon Cherokee Meadows monthly financial reports. Tax Credit Assurance prepared and recommended a payment plan system that would eventually bring tenants who consistently paid rent late on schedule. This change in policy included the imposition of late fees for late rent payments as well as payment of an additional agreed fee that would eventually allow these tenants to pay their rent on time. The payment plan and imposition of late fees was applied universally to all late-paying tenants at Cherokee Meadows, not just the tenants involved in this litigation. [Doc. 97, p1');">p. 14-15, ¶¶ 41-42; Doc. 104, p. 13');">13, ¶¶ 23-24; Doc. 97-10, pp. 2-3, ¶¶ 7-11, 14]. Rand paid a late fee for three months, but, after she complained, the Carland Defendants ceased its application of the new policy to her and refunded all late fees it had charged her. [Doc. 97, p. 14, ¶ 40; Doc. 140');">140, pp. 7-14; Doc. 97-10, pp. 3-4, ¶ 15; Doc. 97-2, p. 79:2-7]. Johnson refused to accept the policy change and continued paying her rent as she had since moving into Cherokee Meadows. [Doc. 104, p. 13');">13, ¶ 25; Doc. 140');">140, pp. 7-14; Doc 104-2, pp. 39:16 to 40:3]. Cherokee Meadows never pursued late fees against Johnson. [Doc. 104, p. 13');">13, ¶ 25; Doc. 140');">140, pp. 7-14; Doc. 104-8, p. 4');">p. 4, ¶ 16].

         In October 2018, Turner alleges that Collette Anderson, the then-property manager, “told her that her lease was up before it really was.” [Doc. 103, 1');">p. 14, ¶ 31; Doc. 103-2, 1');">p. 102:4-21]. However, Turner corrected Anderson, and did not sign a renewal lease at that time. [Doc. 103, p. 14, ¶ 31; Doc. 103-2 at p1');">p. 102:22 to 103:1].

         At some point during Johnson9;s residency at the Community, the then-property manger Kelly informed Johnson of a $10 rent shortage for each month of her residence there. [Doc. 104, p. 12, ¶ 19; Doc. 140');">140, pp. 7-14; Doc. 104-2, pp. 35:8 to 37:10]. Johnson requested that Kelly call Carland and the corporate office said that it was a “misunderstanding” and that Johnson did not owe anything. [Id.]. Johnson never paid the alleged $10 per month shortage. [Doc. 104, p. 13');">13, ¶ 20; Doc. 140');">140, pp. 7-14; Doc. 104-2, pp. 35:8 to 37:10].

         In November and December 2018, Cherokee Meadows, LP retrofitted the mountable curbs by removing them across the driveways to each apartment and replacing them with a sloping driveway. [Doc. 92, 1');">p. 10, ¶ 11; Doc. 140');">140, pp. 7-14; Doc. 92-4, p. 4, ¶ 20]. As of July 1, 2019, the cost to retrofit the curbs was $36, 500.00. [Doc. 92, 1');">p. 11, ¶ 12; Doc. 140');">140, pp. 7-14; Doc. 92-4, p. 5');">p. 5, ¶ 21]. As of July 1, 2019, Shaw, Rand, and Turner have mail delivered directly to their respective doors. [Doc. 92, 1');">p. 12, ¶ 21; Doc. 97, 1');">p. 10, ¶ 6; Doc. 103, 1');">p. 14, ¶ 25; Doc. 92, pp. 7-14].

         V. Carland Defendants Analysis

         As previously stated, the Carland Defendants seek partial summary judgment separately against each plaintiff as to Count 1, violation of § 3604(f)(3)(C) of the Fair Housing Act; Count 2, discrimination under the Fair Housing Act; and Count 3, violation of § 504 of the Rehabilitation Act. The Carland Defendants raise the following propositions in their motions for partial summary judgment against all plaintiffs: (i) plaintiffs cannot establish that the Carland Defendants engaged in discriminatory conduct under the FHA; (ii) plaintiffs cannot establish a prima facie case of failure to make a reasonable accommodation under the FHA; (iii) plaintiffs cannot establish retaliation under the FHA; (iv) plaintiffs are not entitled to punitive damages under the FHA; (v) plaintiffs are not entitled to emotional distress damages under the FHA; (vi) plaintiffs cannot establish a prima facie case of discrimination under the Rehabilitation Act; and (vii) plaintiffs9; request for injunctive relief is moot. Additionally, as to plaintiffs Johnson and Turner, the Carland Defendants contend that those plaintiffs cannot establish a breach of the duty by the Carland Defendants under the FHA resulting in personal injury.

         The court first considers the propositions related to the Fair Housing Act.

         A. Fair Housing Act

         Section 3604(f) of the Fair Housing Act (“FHA”) generally prohibits discrimination in the sale or rental of any dwelling because of handicap. The Tenth Circuit has recognized that “[p]rohibited handicap discrimination may take several forms, including (1) disparate treatment, i.e., intentional discrimination; (2) disparate impact, i.e., the discriminatory effect of a facially neutral practice or policy; (3) a refusal to permit ‘reasonable modifications of existing premises9;; (4) a ‘refusal to make reasonable accommodations in rules, policies, practices, or services9;; or (5) a failure to ‘design and construct9; handicap accessible buildings.” Keys Youth Servs., Inc. v. City of Olathe, 8 F.3d 1267');">248 F.3d 1267, 1272-73 (10th Cir. 2001) (quoting 42 U.S.C. § 3604(f)(3)). Additionally, the FHA prohibits “steering” and retaliation. 42 U.S.C. 3605(a), (f)(1) and 42 U.S.C. § 3617, respectively.

         In Count 1, plaintiffs assert a discrimination claim for failure to “design and construct” handicap accessible multifamily dwellings pursuant to 42 U.S.C. § 3604(f)(3). In Count 2, plaintiffs seek recovery for violation of § 3604(f), which prohibits discrimination “in the terms, conditions, or privileges of . . . rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap.” 42 U.S.C. § 3604(f)(2). Count 2 also ...


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